2206200 (Refugee)
[2023] AATA 3557
•26 October 2023
2206200 (Refugee) [2023] AATA 3557 (26 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Ali Mahmood Alkafaji
CASE NUMBER: 2206200
COUNTRY OF REFERENCE: Stateless
MEMBER: Senior Member G. A. F. Connolly
DATE:26 October 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 26 October 2023 at 4:29pm
CATCHWORDS
REFUGEE – cancellation – protection visa – stateless/Kuwait/Iraq – incorrect answers given in visa application – citizenship – stateless Kuwaiti-born Bidoon or Iraqi citizen – coherent, consistent and credible evidence of family and personal history, including expulsion from Kuwait – Iraqi ID and residency cards provided with wife’s partner visa application and assessed as genuine by DFAT – wife and children’s citizenship gained through her mother after applicant departed – country information – citizenship laws of Kuwait and Iraq – applicant not eligible for either – Iraqi civil status ID card not citizenship, but issued to stateless people for identity purposes and to access services – documentation can be obtained by corruption, bribery or forgery – facts ascertainable by diligent departmental officers – onus of proving facts and non-compliance on department – real state of satisfaction required, not a possible ground of cancellation – obviously flawed and unpersuasive case and decision – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 486CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Drake v MIEA (1979) 24 ALR 577
Mian v MILGEA (1992) 28 ALD 165
Re Canavan [2017] HCA 45
Singh v MIEA (FCA, Sackville J, 6 December 1994)
Sykes v Cleary (1992) 176 CLR 77
Tarasovski v MILGEA (1993) 45 FCR 570
Zhao v MIMA [2000] FCA 1235Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made on 27 April 2022 by a delegate of the Minister for Home Affairs (Minister’s Delegate) to cancel the applicant’s Subclass 866 (Protection) visa (protection visa) under s 109(1) of the Migration Act 1958 (Cth) (Migration Act).[1]
[1] Department of Home Affairs, Notice of decision of whether to cancel under s 109 of the Migration Act 1958, dated 27 April 2022.
The Minister’s Delegate cancelled the applicant’s protection visa on the basis that the applicant failed to comply with s 101(b) of the Migration Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the protection visa should be cancelled.
For the reasons that follow, there were no valid grounds for the decision made by the Minister’s Delegate and his purported decision to cancel the applicant’s protection visa must be set aside.
THE FACTS
On or about [Date 1], the applicant was born in the State of Kuwait, into a family of Bidoons. The applicant is a Sunni Arab and his ancestors were Bedouins who lived in what is now Kuwait.[2] The applicant grew up in Kuwait but was, as will be explained, never a Kuwaiti citizen.
[2] Applicant’s statutory declaration made 08 January 2011, cited in Department of Home Affairs, Notice of decision of whether to cancel under s 109 of the Migration Act 1958, dated 27 April 2022, at page 2.
On 02 August 1990, Iraq invaded Kuwait and proceeded to occupy the whole of Kuwait, causing what will become the Gulf War.
From 24 to 28 February 1991, the Iraqi armed forces of occupation were expelled from Kuwait by an allied Coalition, including Australian forces, as part of Operation DESERT STORM. After the allied Coalition’s liberation of Kuwait, many Bidoons were encouraged, or required by, the Kuwaiti state in the 1990s to leave Kuwait (as discussed in these reasons below).
In [Year], the applicant and his family were forced by the Kuwaiti state to leave Kuwait and instead were ‘relocated’ by some means to neighbouring Iraq. The government of the Republic of Iraq at this time was a Baathist dictatorship led by former President Saddam Hussein.
In the period 2009-2010, the applicant was the victim of repeated attacks by the Badr Brigade, a Shia militia backed by Iran.[3] These attacks included attacks on the applicant’s home and on his family, and, also, resulted in the applicant being taken as a hostage by Shia militiamen, where he was tortured.[4]
[3][4] Applicant’s Record of Status Assessment dated 10 February 2011 at pages 2 to 3.
[In] October 2010, the applicant arrived as an irregular maritime arrival (IMA), without a visa to an excised Australian place, namely Christmas Island, where he was placed into Immigration detention.[5]
[5] Applicant’s Record of Status Assessment dated 10 February 2011 at page 2.
On 9 January 2011, the applicant, as an IMA, made a request for a Refugee Status Assessment (RSA). In support of the applicant’s RSA, he had made a Statutory Declaration[6] on the previous day, declaring that:
“I am a resident of Iraq, an Arab and Sunni and I do not have right to citizenship or a right to reside in any other country. I am Bidoon and my father and grandfather were Bidoon. My grandparents and parents used to be Bedouins and were never granted citizenship and were considered to be non-Kuwaitis
After the liberation of Kuwait my father was on his way to work, was caught by the police, identified as a Bidoon and was detained and expelled from Kuwait. Our family was given ten days to leave Kuwait and told our father was sent to [Location 1]. We received some documents from the Iraqi government and were moved to Nasariah, where we lived for most of our life. In [Year] we were forced to move into a border camp and told to ask for citizenship from the Kuwait government. I left Iraq because I was denied access to basic rights and cannot seek protection without the legal citizenship of the country.
In 2009 we lived in Nasariah, a predominantly Shia neighbourhood. During religious periods Shia children would throw rocks at our windows and doors We could not access our mosque for Friday prayers as the Shia had taken over our mosque. We received written threats to leave the area and that we do not belong. Our house was attacked by the Badr Brigade; they shot at the house with guns My daughter became frightened and ran to her mother resulting in burns to her chest from oil from the stove. In May 2010 I was kidnapped by either the Mahdi Army or the Badr Brigade. I was detained for one month and tortured with water.
My brother was also kidnapped and detained for a while.
I was scared being detained and feared being killed. If I return to Iraq or Kuwait I would be denied basic rights and fear being killed by the Militia groups for my nationality and religion. I am unable to work so that I can support my family. The Shia Muslims prevent us from practicing religion. I fear serious harm from the Badr Brigade, the Mahdi Army and the government because the Badr brigade and Mahdi Army are in, and control the government. I am not able to locate elsewhere because the tribes would not accept me.”
[6] Applicant’s statutory declaration of 08 January 2011.
On or about 10 February 2011, the applicant was interviewed by the Assessment Officer of the then Department of Immigration and Citizenship to be a person to whom Australia owed protection obligations (2011 Assessment Decision). In respect of the applicant’s status as a Bidoon, the 2011 Assessment Decision noted this:
The claimant's statement at his RSA interview was coherent and consistent with his entry interview statements Based on the information before me and my previous finding that I have accorded the claimant extensive benefit of the doubt, I accept that the claimant is a Kuwaiti Bidoon that he was born and lived all his life in Kuwait until his family was deported to Iraq after the invasion of Kuwait in 1991. In reaching this conclusion I have relied on the claimant's oral evidence at his RSA interview. I found the claimant to be credible and forthright and considered that the claimant gave evidence consistent with available country information on Kuwait and Iraq.
I accept that the claimant was born in and resided with his family in Kuwait and that neither he nor any member of his family was ever granted Kuwaiti citizenship. I accept that following the invasion of Kuwait by Iraq, the Kuwaiti authorities forced the family out of Kuwait and into Iraq. I accept that the claimant lived in Iraq ever since. I accept that for whatever reason, the claimant was amongst those Bidoons who were not granted or did not acquire Iraqi citizenship.
A stateless person is an individual who lacks identity as a national of a State for the purpose of law and is not entitled to the rights, benefits, or protection ordinarily available to a country's nationals Statelessness is established where no country recognises the person as holding its citizenship. [4.5]
I find on the basis of the available evidence before me, that the claimant is a stateless person.
On 05 May 2011, the applicant was granted a protection visa.
On 30 December 2014, the Minister’s Delegate contends that a [Ms A] (born [Date]) lodged a combined offshore Partner (subclass 309/subclass 100) visa application at the Australian Embassy in Amman (Jordan) with the applicant listed as the sponsor. Included with [Ms A]’s application were copies of the following documents:
a.a copy of an Iraqi ID card ([Number]) (Iraqi ID card) issued in 2006 in the name of a person named [Alias]; and
b.a copy of a residency card issued by the Iraqi Department of Citizenship and Residency in the name of [Alias].
On 10 December 2016, the then Department of Immigration and Border Protection sent a letter to the applicant notifying him that the Minister’s Delegate was considering the cancellation of his protection visa as the applicant was alleged by the Department to be the holder of the 2006 Iraqi ID card and, in the Department’s view, this 2006 Iraqi ID Card was evidence that he was not stateless.
On 13 January 2017, in response to this notice, the applicant’s representative, Mr Alkafaji, made the following submission, which I set out in full as it bears on the question under review, especially the weight and relevance to given to the purportedly discovered 2006 Iraqi ID card:
My client confirm that he did not breach section 101 as he did not give the department any incorrect information, my client was in born in Kuwait as stateless, moved to Iraq and lived in Iraq as stateless person, never acquired the Iraqi citizenship at all.
My client presented the department with a civil status ID numbered [Number] issued on [Date], my client told the department that this ID was issued by the Iraqi government for the stateless people in Iraq just to facilitate the stateless people's life because the Iraqi departments will ask the people to introduce themselves , and this is the only way for the stateless people to prove who they were in Iraq, my client maintain that these !D's never meant to be a certificate of citizenship, because he personally was never been issued with such certificate, he had only this Civil ID to prove who he was, he never acquired the Iraqi citizenship certificate which is the formal document to prove that someone was an Iraqi national, in the case of the applicant he was no entitled to get the Iraqi citizenship because both his parents are not of Iraqi origins, therefore section 3 or 4 of Law No (46) of 1963-Iraqi Nationality does not apply to the applicant because the articles provide for the following:
Article 3:
1. The person bearing an Ottoman Nationality, who has attained his majority, and habitually living in Iraq, shall lose his Ottoman Nationality, and shall be deemed to be an Iraq National from the sixth day of August, 1924. His son shall also be deemed an Iraqi national in succession.
2. The person who, at the date mentioned in (I) above, has not attained his majority and lost parents or father only, shall lose Ottoman Nationality, and shall be deemed to be an Iraqi National from the date mentioned above.
Article 4:
Shall hereby deemed to be an Iraqi National:
1. Every person born in or outside Iraq of a father possessing Iraqi Nationality.
2. Every person born in Iraq of an Iraqi mother and an unknown or stateless father.
3. Every person in Iraq of unknown parents The foundling who is found in Iraq, shall be deemed to be born there unless there shall be an evidence against it.
As my clients were not Iraqi, then he will not be entitled to get the Iraqi citizenship.
As for the application for partner visa which was lodged by his wife ([Ms A], DOB ) (the letter of intention to cancel my client visa refer to the wrong person as the person who initiated the application for partner visa, because [Ms B] is his daughter and not his wife, however, my client's wife's mother is an Iraqi person, her father is stateless person, now because my client's wife is an Iraqi person, my client's wife was able to get the Iraqi citizenship in 2013 , accordingly all his children acquired the Iraqi citizenship in 2013, his wife presented the Iraqi citizenship certificates for her and her children to the department as part of the application for UF309 BC, copies and translations of these ce11ificate are attached to this submission as well, the date of issue for all these certificates is [Date 1] for the mother and [Date 2] for all her children.
My client's wife and children acquired the Iraqi citizenship when the applicant was in Australia, he never been into Iraq since he arrived to Australia.
My client maintain that he is still stateless person who have no right of citizenship from any country, his children acquired the Iraqi citizenship because his wife acquired the Iraqi citizenship, his wife acquired the Iraqi citizenship because her mother is an Iraqi citizen, his wife and children acquired the Iraqi citizenship in 20 I 3 when the applicant is in Australia, never before that date,
My client maintain that his wife acquired the Iraqi citizenship with great difficulty in 2103 [sic] because her father was and still stateless person and because her mother passed away prior to the grant of the Iraqi citizenship to his wife.
My client maintain that all the information provided to the department is correct and genuine
End of submission
On 30 January 2017, the former Department of Immigration and Border Protection sent a superseding letter to the applicant notifying him that the Minister’s Delegate was considering the cancellation of his protection visa.
On 27 April 2018, the Minister’s Delegate contended that the applicant provided a Form 424C requesting his name be changed from [Alias] to [the applicant]. In support of this request, the applicant allegedly provided an electronic photocopy of a Victorian Births, Deaths and Marriages ‘Change of Name Certificate’ ([Number]) issued in a registered name of [the applicant] and this certificate displays his ‘former name’ as [Alias].
On 24 October 2018, the High Court (Edelman J) made, inter alia, these orders by consent in matter S202 of 2018[7]:
a.a decision made by the Minister’s Delegate on 11 December 2017 purporting to cancel the plaintiff’s protection visa is quashed;
b.writ of prohibition to issue preventing the Minister for Home Affairs or his agents, employees, or delegates, from giving effect to the cancellation decision in (a) above; and
c.Minister for Home Affairs to pay the applicant’s costs.
[7] Consent Orders made by Edelman J in High Court matter number S202 of 2018 on 24 October 2018.
On 14 April 2021, the Minister’s Delegate wrote this to the applicant which I will set out at some length, rather than attempt to summarise, as it is more or less repeated in the subsequent correspondence of the Minister’s Delegate with the applicant:
This letter refers to your Protection (subclass 866) visa which was granted on 5 May 2011. As a delegate of the Minister, I consider that you did not comply with section 101(b) of the Migration Act 1958 (the Act).
If this is the case, your visa may be cancelled under section 109 of the Migration Act 1958.
Particulars of the possible non-compliance:
I consider that there may have been non-compliance with the following section of the Act which states (in part):
Section 101 Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(b) no incorrect answers are given or provided.
In considering s101(b), I have noted the application of the following provisions of the Act:
Section 98 - Completion of visa application
A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
Section 99 - Information is answer
Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
Section 100 - Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
Evidence of non-compliance:
On 31 October 2010 you arrived as an irregular maritime arrival (IMA) without a visa to an excised place, namely Christmas Island, and were placed into Immigration detention.
Refugee Status Assessment
On 9 January 2011, you made a request for a Refugee Status Assessment (RSA)
In support of your RSA, you provided a Statutory Declaration dated 8 January 2011. Your claims are set out below:
“I am a resident of Iraq, an Arab and Sunni and I do not have right to citizenship or a right to reside in any other country. I am Bidoon and my father and grandfather were Bidoon. My grandparents and parents used to be Bedouins and were never granted citizenship and were considered to be non-Kuwaitis
After the liberation of Kuwait my father was on his way to work, was caught by the police, identified as a Bidoon and was detained and expelled from Kuwait. Our family was given ten days to leave Kuwait and told our father was sent to [Location 1]. We received some documents from the Iraqi government and were moved to Nasariah, where we lived for most of our life. In [Year] we were forced to move into a border camp and told to ask for citizenship from the Kuwait government.
I left Iraq because I was denied access to basic rights and cannot seek protection without the legal citizenship of the country.
In 2009 we lived in Nasariah, a predominantly Shia neighbourhood. During religious periods Shia children would throw rocks at our windows and doors We could not access our mosque for Friday prayers as the Shia had taken over our mosque. We received written threats to leave the area and that we do not belong. Our house was attacked by the Badr Brigade;
they shot at the house with guns My daughter became frightened and ran to her mother resulting in burns to her chest from oil from the stove. In May 2010 I was kidnapped by either the Mahdi Army or the Badr Brigade. I was detained for one month and tortured with water. My brother was also kidnapped and detained for a while.
I was scared being detained and feared being killed. If I return to Iraq or Kuwait I would be denied basic rights and fear being killed by the Militia groups for my nationality and religion. I am unable to work so that I can support my family. The Shia Muslims prevent us from practicing religion. I fear serious harm from the Badr Brigade, the Mahdi Army and the government because the Badr brigade and Mahdi Army are in, and control the government. I am not able to locate elsewhere because the tribes would not accept me.”
On 25 February 2011 you were found to be a person to whom Australia owed protection obligations, as set out in Article 1A of the 1951 Convention Relating to the Status of Refugees (the Refugee Convention) and its 1967 Protocol.
Protection visa application:
On 2 May 2011, you lodged a Form 866 – Application for a Protection (Class XA) visa. This application included the following components which you completed in full.
Part B – Persons included in this application and family composition.
Part C – Application for an applicant who wishes to submit their own claims to be a refugee.
In part C of your application for a Protection visa, you provided the following answers (shown in italics) to the questions below:
Question 1,
What is your full name? Family name: [Alias Family name]
Given names: [Alias Given names, different form]
Question 7,
Date of birth: [Date 1]
Question 19,
Your citizenship at birth: Stateless
Question 21,
Do you hold any other citizenship or are you a national of any other country: No
Question 22,
Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) of nationality or your former country(s) of habitual residence: No
Question 23,
If you are stateless, how, when and why did you lose your citizenship: “Kuwait does not recognise Bidoon people”
Question 41,
I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries): Iraq / Kuwait
As mentioned above, you provided a Statutory Declaration dated 8 January 2011 as part of your RSA. You referred to this Statutory Declaration in your application for a Protection visa in the below listed questions at part C of the Form 866.
Question 42,
Why did you leave that country?
“Please refer to my Statutory Declaration”.
Question 43,
What do you fear may happen to you if you go back to that country?
“Please refer to my Statutory Declaration”.
Question 44,
Who do you think may harm/mistreat you if you go back?
“Please refer to my Statutory Declaration”.
Question 45,
Why do you think this will happen to you if you go back?
“Please refer to my Statutory Declaration”.
Question 46,
Do you think the authorities of that country can and will protect you if you go back? If not, why not?
“Please refer to my Statutory Declaration”.
Request for amendment or annotation to personal records
On 27 April 2018, you provided a Form 424C requesting your name be changed from [Alias] to [the applicant]. In support of your request, you provided an electronic photocopy of a Victorian Births, Deaths and Marriages ‘Change of Name Certificate’ ([Number]) issued in your registered name as [the applicant]. The certificate displays your ‘former name’ as [Alias].
You also provided an electronic photocopy of your Queensland Driver’s licence ([Number]) issued in the name of [the applicant] which displays a photograph containing your image.
Subsequent information received by the Department, indicating the answers you provided in your Protection visa application were incorrect:
On 30 December 2014, [Ms A] ([DOB]) lodged a combined offshore Partner (subclass 309/subclass 100) visa application at the Australian Embassy in Amman (Jordan) with you listed as the sponsor.
Included with the application were copies of the following documents:
A copy of your Iraqi ID card ([Number]) issued in 2006 in the name of [Alias].
A copy of your residency card issued by the Iraqi Department of Citizenship and Residency in the name of [Alias].
Your Protection visa was granted on the basis that you satisfied the Minister that you engaged Australia's protection obligations under the Refugee Convention. You claimed that you were stateless, did not receive basic human rights, could not work and could not seek protection in Iraq.
You claimed if you returned to Iraq or Kuwait you would be denied basic rights and were in fear of being killed by the Militia groups – targeted on the basis of your stateless status, ethnicity and religion.
You claimed you are not able to work to support your family and the Shia Muslims prevent you from practicing your religion.
You claimed you fear serious harm from the Badr Brigade, the Mahdi Army and the Iraqi government because the Badr Brigade and Mahdi Army operate within, and control, the government.
You claimed that you are not able to relocate elsewhere because the tribes would not accept you if you moved to another location where you were not known to these other tribes
The information you provided in support of your Protection visa application was material to the determination that you engaged Australia’s protection obligations
As noted above, your Iraqi ID card, which was provided together with a translation on 30 December 2014 in your wife’s Partner visa application, was issued in 2006 and displays your name as [Alias]. The translation of this document records your place of birth as ‘[Location 2] – Nassereyah – Thi Qar’ which appears to be in the Dhi Qar Governorate in southern Iraq, where the provincial capital is Nasiriyah.
Available country information confirms that Iraqi ID cards are only issued to citizens of Iraq. In March 2016, the Iraqi government began issuing a new National Identity Card, which was intended to replace both the old Civil Status ID Card (CSID) and the Nationality Certificate. 1 Reports from 2017 and 2018 state that an applicant for the new National Identity Card is required to present proof of their citizenship in order to obtain this card, 2 which indicates that it would only be issued to Iraqi citizens
In relation to the CSID, which is still in use in Iraq, 3 the Australian Department of Foreign Affairs and Trade (DFAT) stated in September 2012 that this card was only issued to Iraqi citizens 4 Relevant legislation also indicates that this card would only be held by an Iraqi citizen. 5 Further information has been found which indicates that proof of citizenship has to be provided when applying for a new or replacement CSID.6
In addition to the above information, sources report that stateless Bidoons are unable to obtain Iraqi ID cards 7
Further, that Bidoons residing in Iraq, who renounced their association with Kuwait, were able to obtain Iraqi citizenship under an assistance package called ‘makremiayah’.8
According to the 2010 Australian Department of Foreign Affairs and Trade (DFAT) advice approximately 47,000 Bidoons were granted Iraqi nationality under the one-time ‘makremiayah’ (meaning a ‘generous act’) assistance package. To qualify, Bidoons had to declare that Kuwait was not their place of birth and often needed sponsorship by a local tribe. 9
This may explain why you were born in Kuwait but were still able to acquire Iraqi citizenship. Your place of birth is listed as a location in Iraq (Al-Barha in the Dhi Qar Governorate) on your Iraqi ID card.
While you may hold Protection claims in reference to Kuwait (as a person identified as a Bidoon who previously resided in Kuwait without citizenship), as a citizen of Iraq, you are not stateless and therefore you would not be specifically targeted, harmed or suffer discrimination on that basis
As an Iraqi citizen, you would have had access to the same services and employment opportunities in Iraq that are available to other Iraqi citizens On the basis that you hold Iraqi citizenship, together with the above referenced country information, it appears your Protection claims of being stateless are not credible and that you did not have a genuine fear of harm in Iraq on that basis
As an Iraqi citizen, you are not a stateless person as claimed in your application for a Protection visa. You therefore have effective protection in Iraq, by the Iraqi authorities, consistent with the level of protection afforded to all other Iraqi citizens
The information you provided in support of your Protection visa application was material to the determination that you were found to engage Australia’s protection obligations
I consider you have not complied with section 101(b) of the Act because you have provided incorrect answers to the following questions listed in the ‘Form 866 – Application for Protection (Class XA) visa’:
Question 19: you were asked: “Your citizenship at birth”. You answered, “Stateless”. I consider this information to be incorrect because you are not stateless The Department has a copy of your Iraqi ID card issued in 2006 by the Government of Iraq. Iraqi ID cards are only issued to citizens of Iraq.
Question 21: you were asked: “Do you hold any other citizenship?”. You answered, “No”. I consider this answer to be incorrect because you are a citizen of Iraq. The Department has a copy of your Iraqi ID card issued in 2006. Iraqi ID cards are only issued to citizens of Iraq.
Question 22: you were asked: “Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) of nationality or your former country(s) of habitual residence?” You answered, “No”. I consider this answer to be incorrect because you are a citizen of Iraq and not stateless as claimed. Therefore as a citizen of Iraq, you have the right to enter and reside in Iraq. You also have access to the rights, freedoms and services offered by Iraq, consistent with other Iraqi citizens
Question 23: you were asked: “If you are stateless, how, when and why did you lose your citizenship?” You answered, “Kuwait does not recognise Bidoon people”. I consider this answer to be incorrect because you are not a stateless person. As an Iraqi citizen, you have effective protection in Iraq, by the Iraqi authorities, consistent with the level of protection afforded to all other Iraqi citizens
Question 42: you were asked: “Why did you leave that country?” In your statutory declaration dated 8 January 2011, you claimed that you were stateless, did not receive basic human rights, could not work and could not seek protection in Iraq. You claimed if you returned to Iraq (or Kuwait) you would be killed by militia groups operating in Iraq and from within the Iraqi government.
You claimed you are not able to work to support your family and the Shia Muslims prevent you from practicing your religion. You claimed that you are not able to relocate elsewhere because the tribes would not accept you, if you moved to another location where you were not known to these other tribes
I consider this answer to be incorrect because you are a documented citizen of Iraq and not stateless as claimed. There is little country information supporting your claim of being specifically targeted or discriminated against by other tribes in the southern regions of Iraq. As a citizen of Iraq, you are not stateless and as a result, there are no restrictions affecting your employment opportunities You have effective protection in Iraq, by the Iraqi authorities, consistent with the level of protection afforded to all other Iraqi citizens As a citizen of Iraq, you also have access to the rights, freedoms and services of all Iraqi citizens
Question 43: you were asked: “What do you fear may happen to you if you go back to that country?” You claimed that you were stateless, did not receive basic human rights, could not work and could not seek protection in Iraq. You claimed if you returned to Iraq (or Kuwait) you would be killed by militia groups operating in Iraq and from within the Iraqi government. You claimed you are not able to work to support your family and the Shia Muslims prevent you from practicing your religion. You claimed that you are not able to relocate elsewhere because the tribes would not accept you, if you moved to another location where you were not known to these other tribes
I consider this answer to be incorrect because you are a documented citizen of Iraq and not stateless as claimed. There is little country information supporting your claim of being specifically targeted or discriminated against by other tribes in the southern regions of Iraq. As a citizen of Iraq, you are not stateless and as a result, there are no restrictions affecting your employment opportunities You have effective protection in Iraq, by the Iraqi authorities, consistent with the level of protection afforded to all other Iraqi citizens As a citizen of Iraq, you also have access to the rights, freedoms and services of all Iraqi citizens
Question 44: you were asked: “Who do you think may harm/mistreat you or your accompanying family members if you go back?” You claimed you would be harmed or killed by militia groups operating in Iraq and from within the Iraqi government; that you are not able to relocate elsewhere because the tribes would not accept you. I consider this answer to be incorrect because you are a documented citizen of Iraq and not stateless as claimed. There is little country information supporting your claim of being specifically targeted or discriminated against by other tribes in the southern regions of Iraq. As a citizen of Iraq, there is no restriction in relation to your lawful movements within Iraq and you have effective protection in Iraq, by the Iraqi authorities, consistent with the level of protection afforded to all other Iraqi citizens
Question 45: you were asked: “Why do you think this will happen to you or your accompanying family members if you go back?” You claimed that you were stateless and on that basis, you did not receive basic human rights, could not work and could not seek protection in Iraq. You claimed if you returned to Iraq (or Kuwait) you would be killed by Militia groups operating in Iraq and from within the Iraqi government. You claimed you are not able to work to support your family and the Shia Muslims prevent you from practicing your religion because you are a stateless Bidoon and a Sunni Muslim. You claimed that you are not able to relocate elsewhere because the tribes would not accept you, if you moved to another location where you were not known to these other tribes
I consider this answer to be incorrect because you are a documented citizen of Iraq and not stateless as claimed. There is little country information supporting your claim of being specifically targeted or discriminated against by other tribes in the southern regions of Iraq. As a citizen of Iraq, there are no restrictions affecting your employment opportunities and you have effective protection in Iraq, by the Iraqi authorities, consistent with the level of protection afforded to all other Iraqi citizens As a citizen of Iraq, you also have access to the rights, freedoms and services of all Iraqi citizens
Your Iraqi national identity card was issued to you in your name in 2006 by the Government of Iraq, and confirms your status as an Iraqi citizen. This information demonstrates that at the time of lodging your Protection visa application on 2 May 2011, you were not stateless as claimed. This information further indicates you were not in fear of harm by the militia groups at the time you applied for a Protection visa, as you did not hold the adverse profile as claimed of being persecuted on the basis of your nationality or religion.
Question 46: you were asked: “Do you think the authorities of that country can and will protect you if you go back? If not, why not?” You claimed that you were stateless, did not receive basic human rights, could not work and could not seek protection in Iraq. You claimed if you returned to Iraq (or Kuwait) you would be killed by militia groups operating in Iraq and from within the Iraqi government. You claimed you are not able to work to support your family and the Shia Muslims prevent you from practicing your religion. You claimed that you are not able to relocate elsewhere because the tribes would not accept you, if you moved to another location where you were not known to these other tribes
I consider this answer to be incorrect because you are a documented citizen of Iraq and not stateless as claimed. There is little country information supporting your claim of being specifically targeted or discriminated against by other tribes in the southern regions of Iraq. As a citizen of Iraq, there are no restrictions affecting your employment opportunities and you have effective protection in Iraq, by the Iraqi authorities, consistent with the level of protection afforded to all other Iraqi citizens As a citizen of Iraq, you also have access to the rights, freedoms and services of all Iraqi citizens
Your Iraqi national identity card was issued to you in your name in 2006 by the Government of Iraq, and confirms your status as an Iraqi citizen. This information demonstrates that at the time of lodging your Protection visa application on 2 May 2011, you were not stateless as claimed or of interest to the authorities This information further indicates you were not in fear of harm by the militia groups, operating in or associated with the government authorities, at the time you applied for a Protection visa, as you did not hold the adverse profile as claimed of being persecuted on the basis of your nationality or religion.
I have omitted the section of the letter that includes “Possible reassessment of non-refoulement obligations” as it is not relevant for present purposes.
On 14 December 2021, according to the Department files that I have reviewed, the following email was sent from the Amaan Integrity Unit in the Australian Embassy in Jordan in respect of the applicant and his identity[8]:
Dear [redacted],
Kindly be informed that our International Relations Manager [redacted] has referred the client's provided Iraqi ID to his contacts in Iraq who confirmed that the document is genuine and that the client is registered with the Iraqi authorities as an Iraqi citizen.
Nowhere in the voluminous documents in the Tribunal’s possession for the purposes of review of this application is there are any document that shows what was referred, in relation to the applicant, and to whom. There is, in particular, no explanation of:
A. what precisely was referred in relation to the applicant?
B. who is or what are these unnamed and unspecified “contacts in Iraq” who were intended to confirm both that (presumably) the 2006 Iraqi ID card was genuine and that the applicant is an Iraqi citizen? This is a question of the utmost gravity and yet there is here an attitude of lazy informality.
C. was this question ever properly referred to a responsible officer(s) of the Government of Iraq?
[8] Amman Integrity Unit email to the Minister’s Delegate, dated 14 December 2021 at 02:30pm.
On 15 December 2021, the Department (via the Ministerial Delegate[9]) claimed that it was informed by the Government of Iraq of the following in respect of the applicant:
On 15 December 2021 the Department’s Amman Office undertook checks with the authorities in Iraq in relation to the visa holder’s Iraqi ID card ([Number]) that was issued in 2006. The Iraqi authorities have advised the Department that the visa holder is known to them as [Alias – different form of name] (date of birth: [Date 2]) and that the details on the Iraqi ID card are
correct. Therefore, this information confirms that the visa holder is a registered citizen of Iraq. It is also noted that while the visa holder did provide his Iraqi ID card together with his application for a Protection visa in 2011, the visa holder claimed that he was a stateless Bidoon and that the card did not bestow Iraqi citizenship because it had been issued to him for identity purposes only.
However the above information provided to the Department by the Iraqi authorities on 15 December 2021 supports that the visa holder was a registered citizen of Iraq at the time he applied for a Protection visa in which he claimed to be stateless.
I reiterate what I say in the preceding paragraph (at [A]-[D]) and note, also, with some perplexity and puzzlement, that the Department claims it was in contact in December 2021 with unnamed and unspecified “authorities in Iraq” but no one in the Department ever asked the Government of Iraq – formally, directly and specifically – whether this applicant was (or remains) a citizen of Iraq? Furthermore, just who were these nameless “authorities in Iraq” that Australian governmental representatives were purportedly dealing with? What were these “checks” that were supposedly done by the Department “with the authorities in Iraq”? Were these “checks” done orally or in writing? What is the evidence these “checks” were ever actually done? Where is any documentary evidence of the process that was followed and, also, the Government of Iraq’s answer to the question of whether or not the applicant had ever been an Iraqi citizen? The internal evidence of what the Department and its fellow governmental officers were doing seems all rather astonishingly informal and imprecise. That such obvious questions were not asked and such obvious steps were not taken here, on their own, weighs, already, against my accepting that the Minister’s Delegate performed any part of their statutory duty as a decision-maker with the rigor and thoroughness required by the Migration Act.
[9] Department of Home Affairs, Notice of Decision of whether to cancel under s 109 of the Migration Act 1958, dated 27 April 2022 at page 6.
On 07 January 2022, the Minister’s Delegate wrote to the applicant notifying the applicant that the Minister’s Delegate was intending to consider cancelling the applicant’s protection visa because the applicant did not comply with s 101(b) of the Migration Act. The Minister’s Delegate wrote in essentially the same terms as the letter of 14 April 2021 but added the material of 15 December 2021 set out above as adverse to the applicant’s continued entitlement to a protection visa.
On 27 April 2022, the Minister’s Delegate cancelled the applicant’s visa.[10] The Minister’s Delegate stated that they have, in view of their findings and assessment adverse to the applicant, which included reliance on the 14-15 December 2021 material set out above at [20] and [21], decided to cancel the applicant’s protection visa.
[10] Department of Home Affairs, Notice of Decision of whether to cancel under s 109 of the Migration Act 1958, dated 27 April 2022.
THE APPLICANT’S CASE IN THIS TRIBUNAL
On 27 April 2022, the applicant applied for review of the decision of the Minister’s Delegate by this Tribunal.
On 17 March 2023, the applicant’s case was first heard by the Tribunal. A further period of time was granted by me to the applicant for him to file further evidence and submissions.
On 16 June 2023, the matter returned for its final hearing before me. There was a further grant of leave at the conclusion of the final hearing to allow for the applicant to file further evidence and submissions to answer questions that were raised in the hearings.
Both of the Tribunal hearings were conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented by Mr Ali Mahmood Alkafaji in relation to the review. The representative attended each of the hearings and the Tribunal is most appreciative of the efforts of Mr Alkafaji in this case.
I should here acknowledge that this case has taken a good deal of time to be finalised, for reasons that, I think, should be obvious to anyone who has to, or who will, determine cases of this sort. This case emerges from the complex position of the Bidoons, formerly in Kuwait and then exiled in the 1990s to what was then Saddam Hussein’s Iraq. It is a truism that cases in this Tribunal will “take the time they take” to resolve, depending on their particular facts. What is quite unusual in this case is that none of the history and nuances of the Bidoons (and this applicant) were ever unknowable for the Australian Government and thus the Minister’s Delegate. After all, Australia has a very long history of relations with and operating in the Middle East, including the two World Wars. More recently, Australia participated in the allied coalitions that fought in the 1990-1991 Gulf War and the 2003 allied invasion and occupation of Iraq, particularly southern Iraq, from where the applicant came to Australia. The whole of the Australian Government has had roles in assisting Iraqi security and reconstruction in the last two decades.[11] In other words, this applicant and his case did not result from surprising or esoteric foreign developments, that should unduly tax or burden an Australian Government’s ministerial delegate(s) to examine and decide correctly.
[11]Instead of doing the most basic research on the position of a Bidoon in the applicant’s historic circumstances, successive ministerial delegates rushed to threaten the cancellation of the applicant’s protection visa. It never seemed to have occurred to the Department that, on a careful examination of recent Iraqi law and history, it was always most unlikely, to put it mildly, that a Bidoon in the applicant’s position would ever be in a position to become an Iraqi citizen. It may be that the Department has some almost reasonable explanation for the conduct of its ministerial delegates in this case. However, so far as I can see from the staggering amount of documentary records in this case, there was a dogged bureaucratic stalking of this applicant, without the slightest heed paid to obvious and significant problems with the evidentiary foundations of the Department’s repeated assertion that a Bidoon, exiled in the 1990s from Kuwait to Iraq, like the applicant had been, was, really, an Iraqi citizen. Like the fading poster in the offices of Scully and Mulder in the 1990s television series, The X Files, the operating theory of the Department in relation to this applicant was, ‘I want to believe’.[12]
[12]If, below, I have set out at some length – indeed, some ‘very long length’ – my reasons for setting aside this decision of the Minister’s Delegate, it is because this applicant should never have been subjected to this Kafka-esque process. It boggles the mind that the Department would wage an almost decade-long campaign against a protection visa holder in the position of this applicant.
For the reasons that follow, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
THE LAW AND THE FACTS
Foreign Law, Statelessness, and the Bidoons
Under Australian law, the question of whether a person is or is not the subject or citizen of a foreign country is a matter for that country’s laws, in this case Kuwait and Iraq. In the 2017 case of Re Canavan[13], a unanimous High Court said this in relation to understanding s 44(i) of the Constitution but which, conceptually, has obvious relevance to the case before this Tribunal and the issues it raises in respect of citizenship and statelessness:
Whether a person has the status of a subject or a citizen of a foreign power necessarily depends upon the law of the foreign power. That is so because it is only the law of the foreign power that can be the source of the status of citizenship or of the rights and duties involved in that status In Sykes v Cleary, Mason CJ, Toohey and McHugh JJ said that “[a]t common law, the question of whether a person is a citizen or national of a particular foreign State is determined according to the law of that foreign State”[14], the common law rule being, in part, a recognition of the principle of international law that “it is for every sovereign State … to settle by its own legislation the rules relating to the acquisition of its nationality”[15].
Insofar as every sovereign nation state may settle its own rules for the acquisition of nationality, including citizenship, it follows that individual nations may, also, grant citizenship to some or all of the persons within its territory, and may grant citizenship to some people and refuse a grant of citizenship to others. Accordingly, the true position of a non-Australian’s foreign citizenship (or lack thereof) requires examination of the peculiar history and law of their country of origin. This Tribunal cannot accept that the substantive fact of an applicant’s statelessness is overcome by some lazily accepted appearance of bureaucratic forms that may hint at possession of a foreign nationality. This prioritising of apparent form over a complete lack of substance is, sadly, what the Department and the Minister’s Delegate did in respect of this applicant. This has left this case to be resolved by this Tribunal, in circumstances where it was always open to the Department to properly investigate the matter and reach the correct and preferable decision.[16]
[13] Re Canavan [2017 ] HCA 45 at [37] per the Court.
[14] (1992) 176 CLR 77 at 105-106.
[15] Nottebohm Case (Liechtenstein v Guatemala) (Second Phase) [1955] ICJR 4 at 20.
[16] see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J.
The Bidoon people, such as the applicant and his family, have been and remain, simply, notorious as persons who are deprived of citizenship in the Arabian peninsula. For reasons set out in this decision, it is simply baffling how these matters concerning Bidoons (like the applicant) were not known to the Minister’s Delegate as they were always “knowable”. It is mind-boggling that when the issue of the applicant possibly having an Iraqi citizenship status was first raised, it was treated by the Department, not with a well-deserved scepticism, but rather with what appears to have been a credulous enthusiasm based on ill-thought-out assumptions. These assumptions included the Department’s handling of its 14-15 December 2021 dealings with unnamed “authorities in Iraq” (as set out at [20]-[21] above). Material that should have prompted further investigations and testing of assumptions by the Department, before any approach was made to challenge the applicant in relation to his claimed statelessness, did, instead, spur the dispatch by the Department of successive notices to this applicant, based on what one can only conclude was some operating principle of evidentiary nihilism.
It is, after all, the case that the Arabic word bidoon means ‘without’, and is derived from the Arabic phrase bidoon jinsiyya, meaning ‘without nationality’ or ‘without citizenship’.[17] It should not be confused with the word Bedouin, which derives from the Arabic word badawi, meaning ‘nomad’, although many Bidoons are, ultimately, of Bedouin descent.[18] The term Bidoon is used more generally in reference to residents from Kuwait and other Gulf countries who are stateless.[19] The UK Home Office’s 2011 Operational Guidance Note[20] – Kuwait defines Bidoons as, “Arabs who have residency ties to the country [Kuwait], some over many generations and some for shorter periods, but who lack or have failed to produce documentary evidence of their nationality.”[21]
[17] Human Rights Watch, The Bidoons of Kuwait: “Citizens without Citizenship”, August 1995, page 2 <
[18] Human Rights Watch, The Bidoons of Kuwait: “Citizens without Citizenship”, August 1995, page 2 < Human Rights Watch, The Bidoons of Kuwait: “Citizens without Citizenship”, August 1995, page 2 < UK Home Office guidance notes are policy documents that aim to provide guidance on whether the main types of claims are likely to justify the granting of asylum and are distinct from other Country of Origin information in that regard.
[21] UK Home Office, Operational Guidance Note – Kuwait, May 2011, page 4. <>
Many Bidoons are descendants of Bedouin tribes that migrated to modern day Kuwait, Saudi Arabia, Syria, and Iraq.[22] In 2007 Refugees International[23] reported that the stateless Bidoons in Kuwait are otherwise “…indistinguishable from Kuwaiti citizens and share a common language, religion and culture.”[24] Bidoons in Kuwait are therefore defined primarily by their lack of citizenship, rather than by ethnicity or other distinctions. It is for these reasons that the applicant’s original affirmative position of statelessness is, hardly, a surprising or startling one. The fact that the applicant was a Bidoon – something accepted by the Australian Government from his first arrival as an IMA in 2011 – should have put the Minister’s Delegate on notice of the history of the Bidoons, not only in Kuwait, and the need to approach this matter, slowly, with some sensitivity, some scholarship, much curiosity, and an overall appreciation of the history of the Bidoons and, particularly, their sufferings as a people tragically denied the rights of citizenship.[25]
[22] UK Home Office, Operational Guidance Note – Kuwait, May 2011, page 4.[23] Refugees International are an independent organisation which provide reports on refugee issues, statelessness and the environment.
[24] Refugees International, About Being Without: Stories of Stateless in Kuwait, UNHCR Refworld, October 2007, at page 8 <
[25] See Claire Beaugrand, Stateless in the Gulf: Migration, Nationality and Society in Kuwait (2019: Bloomsbury Publishing, London UK)
The Bidoons Today
It is important to note that the Bedouin and Bidoons are related but that the Bedouins are nomads found throughout the Arabian peninsula, whereas the Bidoons are a particular ‘stateless’ Arab people found in Kuwait, Iraq, and in other parts of the Persian Gulf region. Many Bidoons, notwithstanding long service to the Kuwaiti state, left Kuwait and fled to Iraq after the 1990-1991 Gulf War. A driver of this exile was the failure of the Bidoon-dominated Kuwaiti army to prevent the Iraqi occupation in August 1990 of Kuwait, which resulted in a suspicion among Kuwaitis that the Bidoons were disloyal. These prejudices, combined with other causes resulting from the aftermath of the 1990-1991 war, led to the Kuwaiti state depriving Bidoons of access to social services, and, especially, the continued denial of Kuwaiti citizenship to Bidoons. Those Bidoons who fled to or were exiled to Iraq after 1991 (then under the Baathist regime of Saddam Hussein) faced challenges of a similar gravity in respect of their being denied Iraqi citizenship and having any access to government services and housing.
In 2023, the Bidoons are still located primarily in Kuwait and Iraq, but are also found in other Arab countries, including Saudi Arabia, Syria, and the Palestinian territories. Bidoons do not generally possess identity documents, are often difficult to assess through censuses and the like, which means that precise demographic information on the Bidoons is unavailable and most scholarship is of an estimative kind. So, for example, the exact number of Bidoons in Kuwait is not available. The last official figures which were gathered by the local Ministry of Planning estimated that more than 100,000 Bidoon lived in Kuwait at the end of 2006.[26] In September 2005, an Immigration and Refugee Board of Canada (IRB) report noted a lack of agreement on the population of Bidoons in Kuwait. The IRB advice put the number of Bidoon in Kuwait at 123,295, including 36,000 who have been granted Kuwaiti citizenship.[27] IRB cited other sources[28] which estimated Kuwait’s Bidoon population to range from 70,000 to 150,000 in 2004.[29] The vast majority of Kuwait’s Bidoons live in the cities of Al Jahra and Sulaibya, west of Kuwait City.[30] Of those Kuwaiti Bidoons, they “… live in virtual exile, in squalid housing projects in Sulaibiya and Jahra, in Ahmadi and the rundown neighbourhood of Jilib ash-Shuyukh.”[31]
[26] US Department of State, 2009 Country Reports on Human Rights Practices – Kuwait, March 2010, < Immigration and Refugee Board of Canada, Kuwait: Treatment of Bidoon by the Kuwaiti authorities (January 2003 - October 2005), KWT100681.E, 21 October 2005
[28] IRB citied Agence France-Presse (AFP), The Daily Star, EIU; Freedom House and U.S Committee for Refugees and Immigrants (USCRI)
[29] Immigration and Refugee Board of Canada, Kuwait: Treatment of Bidoon by the Kuwaiti authorities (January 2003 - October 2005), KWT100681.E, 21 October 2005[30]
[31] Refugees International, ‘Kuwait: State of Exclusion’, UNHCR Refworld website, 25 July 2007 >
As with Kuwait, precise population figures of Bidoons in Iraq are difficult to establish. In September 2010, DFAT stated that the number of Bidoon who fled from Kuwait into Iraq, like the applicant’s family, after the 1990-1991 Gulf War, was estimated to be ‘no more than 100,000’.[32] In 2010, the UNHCR published a report by Laura Van Wass[33], which stated that between 100,000 and 240,000 Bidoon left Kuwait at this time with the majority going to Iraq.[34] Again, there is a chronic problem with accurately gauging the number of Bidoons in Kuwait or Iraq. Reporting by DFAT in 2010 noted that the Bidoons of Iraq, “…. live in the desert in the southern provinces of Basra and Dhi-Qar (also known as Thi-Qar) and especially around Samawa.”[35] Similarly, in 2011 the US Department of State reported that there were 54,000 stateless Bidoon living as nomads near Basra, Dhi-Qar, and Samawa governorates, near where the applicant resided in southern Iraq.[36]
[32] Department of Foreign Affairs and Trade, DFAT Report No. 10/54 – Iraq: RRT Information Request: IRQ37183, 13 September 2010.
[33] Laura Van Waas is a Senior Researcher and Manager of the Statelessness Programme, Tilburg Law School, Netherlands See also: Laura van Waas, ‘“Are We There Yet?” The Emergence of Statelessness on the International Human Rights Agenda 32 Netherlands Quarterly of Human Rights (2014) 342.
[34] Laura Van Waas, The situation of stateless persons in the Middle East and North Africa, UNHCR, October 2010, page 16 <
[35] Department of Foreign Affairs and Trade, DFAT Report No. 10/54 – Iraq: RRT Information Request: IRQ37183, 13 September 2011
[36] US Department of State, 2010 Country Reports on Human Rights Practices, 8 April 2011, Section D,
Definitive information on the religious composition of Iraq’s Bidoons is hard to find albeit a reasonable surmise is that most Bidoons in Iraq are Shia, not Sunni like the applicant.[37] As mentioned above, the Bidoon population in Iraq reportedly live in the southern provinces of Basra and Dhi-Qar, which have majority Shia populations. The population of Basra is predominantly Shia, although it does consist of Sunni, Christian and Mandaean populations [38] Dhi-Qar province is also majority Shia.[39]
[37] Shilblak, ‘Arabia’s Bidoon’ in Blitz B & Lynch M eds, Statelessness and the Benefits of Citizenship: A Comparative Study on the Benefits of Nationality (2011) Edward Elgar Publishing Inc, at page 176.
[38]
[39] Inter-Agency Information and Analysis Unit, Thi-Qar Governorate Profile, October 2011 <
History and Status of the Bidoons in Kuwait
Although many Bidoons have lived in Kuwait all their lives, like the applicant, they are not, and of those that remain, likely never will be, Kuwaiti citizens.
Under Kuwait’s own Nationality Law of 1959, Kuwaiti nationals are defined as persons who settled in Kuwait prior to 1920 and who maintained their normal residence there until the date of publication of the law in 1959.[40] At the time this Nationality Law was made passed, approximately one third of Kuwait’s population were recognised as citizens on the basis of being ‘founding fathers’ of the new Kuwaiti nation state, another third were granted citizenship, while the remaining third were classified as bidoon jinsiyya (literally, “without nationality”).[41] The UK Home Office’s 2011 guidance note outlined the different scenarios in which Bidoons were either denied or failed to gain Kuwaiti citizenship. They include:
a.individuals who attempted to claim citizenship under the Nationality Law and earlier citizenship regulations and whose applications were accepted for consideration but never acted upon by the Kuwaiti authorities;
b.individuals who migrated to Kuwait from nearby countries to work and over time lost links to their country of origin, effectively losing their nationality citizenship of that country, as well as children of such migrants who failed to establish nationality in their parents’ country of origin; and
c.children of Bidoon parents, including notably the children of Kuwaiti mothers and Bidoon fathers.[42]
[40] UK Home Office, Operational Guidance Note – Kuwait, May 2011, page 4 Refugees International, ‘Kuwait: Still Stalling on Statelessness’, 12 May 2010
[42] UK Home Office, Operational Guidance Note – Kuwait, May 2011, page 4 >It is true that Bidoons received some economic and social benefits equal to those of Kuwaiti citizens during the 1960s and 70s, including free health care and education, but Bidoons could not vote. While the Bidoons did not enjoy political rights, they were otherwise treated very much as Kuwaiti citizens until the mid-1980s. The Bidoons did have rights with respect to accessing government services, including housing, work, education, and medical care.[43]
[43] A. Shilblak, ‘Arabia’s Bidoon’ in Blitz B & Lynch M eds , Statelessness and the Benefits of Citizenship: A Comparative Study on the Benefits of Nationality, Edward Elgar Publishing Inc, page 175
Regional instability during the 1980s and 1990s, however, led the Kuwaiti state to commence discriminating against the Bidoon by diminishing their benefits and disqualifying them from some government services and jobs.[44] Several factors contributed to the shift in policy regarding the status of Bidoons during the 1980s. First, a number of amendments were made to Kuwaiti nationality laws, which further restricted Kuwaiti residents from gaining citizenship.[45] Second, Kuwait was suffering instability as a result of the 1980-1988 Iran-Iraq. In particular, the attempted assassination in 1986 of the then Kuwaiti Emir, Sheikh Jaber Al-Sabah, was wrongly blamed on the Bidoons[46], which led to a new anti-Bidoon policy.[47] Kuwait became more suspicious of those who were not Kuwaiti citizens in the 1980s.[48] As many of the Bidoons in Kuwait were Shia Muslims and suspected of being sympathisers of the confessionally Shia state of the Islamic Republic of Iran[49], then the Bidoons’ access to government services, health, and education, was gradually restricted or withdrawn by the Kuwaiti state.[50]
[44] Human Rights Watch, Prisoners of the Past: Kuwaiti Bidun and the Burden of Statelessness, June 2011, page 3
[45] Amendments included a 1960 restriction on the number of naturalisations which could take place each year to 50; a 1980 amendment removing a Kuwaiti woman’s ability to transmit her citizenship to her children; and a 1981 amendment that specified that only Muslims could qualify for Kuwaiti nationality. See Human Rights Watch, Kuwait: Prisoners of the Past, Bidun and the Burden of Statelessness, June 2011 at page 13.[46] This claim was later dismissed after a number of Bidoons were found to have died or injured protecting the Emir. See Shilblak, ‘Arabia’s Bidoon’, ibid, at page 176
[47] Human Rights Watch, Kuwait: Prisoners of the Past, Bidun and the Burden of Statelessness, at page 14.
[48] Human Rights Watch, Kuwait: Prisoners of the Past, Bidun and the Burden of Statelessness, at page 13.
[49] Shilblak ‘Arabia’s Bidoon’, at page 176
[50] Shilblak, ‘Arabia’s Bidoon’, at page 177
Bidoons during and after the Persian Gulf War 1990-1991
During the 1980s, notwithstanding their statelessness, the Bidoons comprised between 80 percent and 90 percent of the Kuwaiti army and made up the majority of the police force.[51] Many Bidoons fought for Kuwait in the 1990-1991 Gulf War, accounting for a large number of Kuwaiti casualties and Kuwait prisoners of war.[52] Notwithstanding this, Bidoons were subject to suspicion and poor treatment by Kuwaiti authorities after the 1991 war ended. According to UK reporting, “During the Gulf War, many Bidoon of Iraqi origin had enlisted, or been forced to enlist, in the Iraqi army.”[53] This alleged collaboration reportedly damaged the reputation of Bidoons and caused the Kuwaiti government and people to be suspicious of them.[54] Some were tried by the Kuwaiti State Security Court in 1991, and convicted and gaoled.[55] Following the 1990-1991 Gulf War, Kuwait deported many Bidoons (often without a hearing) for their alleged collaboration with Iraqi forces because a few individual Bidoon joined the Iraqi army during the war.[56] The Bidoon were subsequently blamed for the Kuwaiti army’s failure to stop the Iraqi invasion, “…since the Bidoon constituted the overwhelming majority of the [Kuwaiti] armed forces rank and file.”[57] The majority of Bidoons were subsequently discharged from military and police ranks and were refused compensation unless they could produce Kuwaiti or foreign passports.[58] Families of dead Bidoon soldiers were unable to collect their relatives’ insurance without a death certificate.[59]
[51] Human Rights Watch, Kuwait: Prisoners of the Past, Bidun and the Burden of Statelessness, at page 14.
[52]
[53] Foreign and Commonwealth Office as cited by the UK Home Office, Country of Origin Information Report – Kuwait, 29 January 2010, at page 44.
[54] Foreign and Commonwealth Office as cited by the UK Home Office, Country of Origin Information Report – Kuwait, 29 January 2010, at page 44.
[55] Foreign and Commonwealth Office as cited by the UK Home Office, Country of Origin Information Report – Kuwait, 29 January 2010, at page 44.
[56] US Committee for Refugees and Immigrants, ‘World Refugee Survey – Occupied Palestinian Territory, Israel, Iraq, Iran, Kuwait’, ECOI website < 6 April 2011, page178
[57]
[58][59] Refugees International, ‘Kuwait: Still Stalling on Statelessness’, 13 May 2010.
Bidoons who had left Kuwait in the 1990s (whether voluntarily or because they had been expelled) were not allowed to return and instead remain stateless in Iraq. Since at least 1991, the Bidoon have been denied most of their basic rights by the Kuwaiti state and subjected to acts of discrimination and persecution.[60] Bidoons were denied Kuwaiti citizenship, education (that was provided to other Kuwaitis free of charge) in government schools, employment opportunities, and state health services.[61] The Kuwaiti government also reportedly dismissed Bidoons from government jobs, restricted them to impoverished areas and barred children from Kuwaiti schools [62] Moreover, in 1995, Bidoons were excluded from Kuwait’s population census for the first time.[63]
[60] Shilblak ‘Arabia’s Bidoon’, at page 178.
[61] Shilblak ‘Arabia’s Bidoon’, at page 178.
[62] US Committee for Refugees and Immigrants 2002, ‘World Refugee Survey – Occupied Palestinian Territory, Israel, Iraq, Iran, Kuwait’, at page 179,
[63] Shilblak ‘Arabia’s Bidoon’, at page 177.
The Bidoons in Iraq from 1991 onwards
There is a limited amount of reliable information on the Bidoons in Iraq, particularly in relation to their treatment by the Iraqi state, both before and after the 2003 allied invasion of Iraq. Accordingly, a certain caution should be exercised in reaching rapid conclusions about the true state of the Bidoons of Iraq, such as the applicant.
Was Iraqi citizenship granted to Bidoons (Makremiayah)? At a point some time following the 1990-1991 Gulf War[64], the Iraqi government of Saddam Hussein made some sort of offer of Iraqi citizenship to the Bidoons who had fled or been deported to Iraq. According to DFAT’s reporting in 2010, approximately 47,417 of the Bidoons were granted Iraqi nationality under the Saddam Hussein regime’s one-time assistance package called Makremiayah, meaning a ‘generous act.’[65] However, to qualify for Iraqi citizenship under the 1990s Makremiayah, a Bidoon had to do the following:
a.declare that Kuwait was not their birthplace;
b.renounce their association with Kuwait; and
c.obtain sponsorship of their citizenship application by an Iraqi tribe.[66]
Only about half, perhaps, of the Bidoons in Iraq were granted this form of Iraqi citizenship under the Saddam-era Makremiayah. The number of still stateless Bidoons in Iraq in the 1990s was estimated to be around 54,500 individuals or 5,430 families.[67] These still stateless Bidoons either refused to renounce their birth in Kuwait, or their association with Kuwait, or lacked sufficient affiliation with any Iraqi tribes, or were, otherwise, unaware of Iraqi naturalisation procedures, or they entered Iraq after the Makremiayah.[68] Notwithstanding this, even if the Bidoons were aware of the Makremiayah, most of them simply lacked the necessary supporting evidence to even begin to apply for Iraqi citizenship in this way, let alone gain the necessary tribal sponsorship.[69] The UNHCR also claims that some Bidoons rejected the idea of acquiring Iraqi nationality, as they still sought, even if fruitlessly, Kuwaiti nationality.[70]
[64] DFAT does not provide a precise date which the Makremiayah was offered to the Bidoon. It mentions that the offer was made to the Bidoons after the 1990-91 Gulf War under Iraq’s former Foreign Minister and Deputy Prime Minister Tarek Aziz
[65] Department of Foreign Affairs and Trade, DFAT Report No. 10/54 – Iraq: RRT Information Request: IRQ37183, 13 September 2010
[66] DFAT Report No. 10/54 – Iraq: RRT Information Request: IRQ37183.
[67] DFAT Report No. 10/54 – Iraq: RRT Information Request: IRQ37183.
[68] DFAT Report No. 10/54 – Iraq: RRT Information Request: IRQ37183.
[69]‘Iraqi Nationality Law No. 43 of 1963’, (enacted 19 June 1963) & Iraqi Nationality Law 2006, Law 26 of 2006, Iraqi Official Gazette, Issue 4019, Accessed 7 March 2006.
[70] United Nations High Commissioner for Refugees (UNHCR), Email ‘Bidoon in Iraq’, 8 September 2010.
In the aftermath of the 2003 Coalition invasion of Iraq and the end of the Saddam Hussein regime, it was DFAT’s advice that it is very difficult (if not impossible) for Bidoons to attain citizenship of the now Republic of Iraq.[71] In a 2010 report, DFAT stated that, “The Iraqi Ministry of Migration and Displacement has no record of registration of Bidoon since 2003.”[72] Accordingly, there is no recent history of the Government of Iraq granting citizenship to the Bidoons.
[71] DFAT, Country Information Report: Iraq, 26 June 2017, at [3.57]-[3.58].
[72] DFAT Information Request: IRQ37183.
The UNHCR reported in 2011 that there are an estimated 120,000 stateless persons in Iraq, including Kurds, Bidoons, and persons who became stateless for other reasons, including mixed marriages.[73] Stateless persons without documentation of their Iraqi nationality lack many of the most basic rights in Iraq including their recognition as a person before the law. Iraqi ID Cards are required to access a very broad range of public and private services, including voting rights, employment and welfare assistance, education and housing.[74]
[73] UNHCR, Report on Human Rights in Iraq 2011, page 35.
[74] United Kingdom: Upper Tribunal (Immigration and Asylum Chamber), MK (documents - relocation) Iraq CG. [2012] UKUT 00126 (IAC), 23 April 2012, page 16.
It is here worth setting out this 2017 DFAT analysis[75] of the Iraqi state and its range and reliability of identity documentation. The obtaining of these Iraqi identity documents is not, on the facts, synonymous with these documents’ possessors having Iraqi citizenship – particularly when such Iraqi identity documentation can be obtained by bribery and corruption:
[5.28] Procedures for issuing documentation are antiquated. Records are kept manually and most types of documentation do not have adequate security features. Issuance and updating procedures are susceptible to bribery and corruption. Citizens are usually issued with four documents – a Nationality Certificate, a Civil Status ID Card, a Residence Card and a Public Distribution System Card. The Iraqi Civil Status ID is considered the most reliable of the four.
[5.29] Documents issued under religious procedures are acceptable in Iraq for the purposes of registration with the Civil Status Office only. Civil documents must be obtained to demonstrate marriage, divorce and custody. Due to a lack of security features, civil documents are also unreliable, except when presented with the corroborated Civil Status ID Card.
[5.30] There are anecdotal reports that some members of minority groups face difficulties in obtaining identity documents due to discrimination by local authorities or an inability to present source records that support the issuance of further documentation. DFAT assesses that these anecdotal reports are credible based on discussions with in-country contacts.
Civil Status ID Card
The Civil Status ID Card has a number of security features and includes a photo of the bearer. Issuing procedures are generally consistent throughout Iraq. The Civil Status ID Card is updated with bio data throughout the bearer’s life, recording events such as marriage, childbirth, divorce and death of a spouse. This bio data is verified against source records (for example, against manual birth records) making the Civil Status ID Card the most reliable document, particularly when presented with corroborating documents. Notwithstanding its superiority and reliability, the Civil Status ID Card is vulnerable to forgery and does not comply with international standards for identity documents. Counterfeit documents are usually easily identified.
[75] DFAT, Country Information Report: Iraq, 26 June 2017, at [5.28] to [5.31].
From this analysis, one can see that the Iraqi nationality certificate and the Iraqi Civil Status ID Card are two different documents. Moreover, even if Iraqi nationality was required to possess an Iraqi Civil Status ID Card, such a card could also still be obtained by illicit means by a non-citizen, provided they were prepared to engage in the necessary chicanery. It is clear that the mere possession by a person of an Iraqi identity document, without more, is proof of nothing more than that this person has an Iraqi identity document in their possession, which may have been obtained lawfully - or may have been obtained by dubious or illicit means.
CONSIDERATION OF CLAIMS AND EVIDENCE
Was the Notice valid?
Section 109(1) of the Migration Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2). Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents, and to notify the Department of any incorrect information of which they become aware, and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Migration Act is conditional on the Minister having first issued a valid notice to the visa holder under s 107, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Migration Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had issued a valid notice under s 107 that complied with the formal statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance by the applicant in the way that is described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
The non-compliance identified and particularised in the s 107 notice provided to the applicant was non-compliance with s 101(b) of the Migration Act, in that the applicant provided incorrect information regarding:
·his statelessness;
·his citizenship; and
·his vulnerability to targeting by Shia militia groups.
It should be here noted that, although the concept of an onus of proof is inappropriate to administrative inquiries and decision-making of the kind done by this Tribunal, in these cancellation cases, the onus or burden of proving facts and non-compliance is on the Minister. There is no onus upon an applicant to establish that a ground for cancellation does not exist.
Rather, in cancellation cases, proof of the existence of facts adverse to the person targeted by the notice is required to ground the subsequent exercise of any statutory power, which, in this case, means that the onus of establishing those facts is on the Minister, or on a merits review, on this Tribunal.[76] In Zhao[77], a case involving a visa cancellation under s 116 of the Migration Act, the Full Court of the Federal Court said this in clear and succinct terms:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not.…
[32] A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. The decision-maker must ultimately be satisfied that the ground for cancellation is established.
[76] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].
[77] Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 (1 September 2000) at [25] and [32] per French, Hill, and Carr, JJ.
The Full Court’s comments in Zhao are applicable to cancellations under s 109 of the Migration Act. It is a most serious decision for the Minister’s Delegate to cancel a protection visa. For an allegation of s 101(b) non-compliance to be well founded and properly made, a decision-maker must first have investigated the whole of the history and circumstances of the case, testing the allegations against the evidence relied upon, before that decision-maker can, properly, consider themselves satisfied that non-compliance has occurred. While an allegation of non-compliance may not always analogise neatly to a task demanding a Briginshaw[78] standard of reasonable satisfaction, it is required in these cancellation cases because of the gravity of the impact of cancellation upon a holder of a protection visa. This Tribunal, for its part, has to be satisfied that such a high degree of satisfaction exists as to prove the applicant’s non-compliance, so that the ground for cancellation is thereby made out.[79] In this case, as in Zhao[80], some remotely possible ground is grossly insufficient.
[78] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 per Dixon J.
[79] See the Federal Court’s decisions in Tarasovski (1993) 45 FCR 570 at 572-3 per Wilcox J, and in Singh (unreported, Sackville J, Federal Court of Australia, 6 December 1994) at [16] where the Briginshaw principle was approved in relation to deportation decisions based upon the legislative predecessors to ss 101-109.
[80] Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 (1 September 2000) at [25] and [32] per French, Hill, and Carr, JJ.
The Applicant’s Statelessness
The applicant’s case has always been that he was stateless and that he had never been a citizen of either Kuwait or Iraq. The applicant say he has no right to Iraqi nationality and that he has never been a citizen of that country.
The applicant has made a consistent case and he has also provided, considering his circumstances, evidence to support his claim he has always been stateless.[81] It includes his own consistent evidence – consistent with the 2011 Assessment Decision noted above – and he has supplied evidence from his own family in support of his case.[82]
[81] See the Applicant’s statutory declaration of 04 March 2023.
[82] Statutory declaration of [Mr C] made 22 March 2023.
There is no evidence from documentation or records of the Government of Iraq, prior to the applicant’s leaving Iraq in 2011, that the applicant was someone who was an Iraqi citizen. Very strangely, as I have noted above at [20] and [21], this question of the applicant’s citizenship status was never directly asked by the Department of the Iraqi government, even as the Department claimed that, on 14-15 December 2021, “…the Department’s Amman Office undertook checks with the authorities in Iraq in relation to the [applicant’s 2006] Iraqi ID card.”[83] The actual meaning and content of these “checks” is anyone’s guess, as is the identity of who or what may be the “the authorities in Iraq”, especially given the extraordinarily imprecise as well as casual departmental email of 14 December 2021. It may be some form of bureaucratic jest, as if this Tribunal should take these assertions of the applicant’s Iraqi citizenship on trust, but, if so, no one discharging the task of merits review here can pretend to be remotely amused.
[83] Department of Home Affairs, Notice of decision of whether to cancel under s 109 of the Migration Act 1958, dated 27 April 2022, at page 6.
The 1990s Makremiayah
The existence of the 1990s era Makremiayah by the regime of Saddam Hussein is proof of nothing in relation to the applicant.[84]
[84] DFAT Report No. 10/54 – Iraq: RRT Information Request: IRQ37183.
For this applicant to have ever qualified for the possibility of Iraqi citizenship, he would first have had to renounce his Bidoon family’s exhaustive history in Kuwait and his birth there – and he then would have needed sponsorship by an Iraqi tribe.[85] There is no evidence that the applicant’s family or the applicant himself ever did any of this, at all. There, is especially, no evidence that the applicant or his family was ever sponsored by an Iraqi tribe.
[85] DFAT Report No. 10/54 – Iraq: RRT Information Request: IRQ37183.
Moreover, so far as is known from exhaustive research done by this Tribunal – a task seemingly not performed by the Department – only about half of the Bidoons in Iraq were ever granted any form of Iraqi citizenship under the 1990s Makremiayah.[86] These remaining stateless Bidoons either refused to renounce their association to Kuwait, or lacked sufficient affiliation with any Iraqi tribes, or were simply unaware of Iraqi naturalisation procedures, or they entered Iraq after the Makremiayah.[87] It is much more likely, on all of the evidence of this case, that this applicant fell into this latter category of ongoing Bidoon statelessness.
[86] DFAT Report No. 10/54 – Iraq: RRT Information Request: IRQ37183.
[87] DFAT Report No. 10/54 – Iraq: RRT Information Request: IRQ37183.
The 2006 Iraqi Identity Card
The Tribunal does not accept that any Iraqi identity card obtained by the applicant on or before 2006 constitutes any conclusive proof of Iraqi citizenship.
One of the more absurd aspects of the notices served by the Minister’s Delegate on the applicant (set out at [19] above) was this statement:
Available country information confirms that Iraqi ID cards are only issued to citizens of Iraq.
This was a claim made by the Department to the applicant at the same time as DFAT was reporting, as set out at [50] and [51] above, that this assertion about Iraqi identity cards was simply never the case.[88] Moreover, if possessing an Iraqi identity card was synonymous with Iraqi citizenship, then the Department’s Amman office would have been able to establish this very easily, with great clarity and obviousness, during its “….checks with the authorities in Iraq.”[89] However, this was, precisely, what the Department did not do.
[88] DFAT, Country Information Report: Iraq, 26 June 2017, at [5.28] to [5.31].
[89] Department of Home Affairs, Notice of decision of whether to cancel under s 109 of the Migration Act 1958, dated 27 April 2022, at page 6.
There is just no evidence that Iraqi identity documents were solely possessed by, or issued only to, citizens of Iraq. Further, there is reporting, again by DFAT, that Iraqi state documentation can be obtained by bribery and corruption.[90] This practice was corroborated and openly admitted to by the applicant in his evidence.[91] A person holding an Iraqi identity document may just as easily be surmised to have obtained it by illicit means as having possessed it by way of lawful right. This surmise was always a significant possibility, given the sheer unlikelihood a Bidoon was an Iraqi citizen, that should have occurred – as a matter of obviousness – to any diligent decision-maker who was examining the applicant’s case. The forging and illicit acquisition of state-issued documentation in, especially, the Middle East, is hardly any sort of unusual happenstance.[92]
[90] DFAT, Country Information Report: Iraq, 26 June 2017, at [5.28] to [5.31].
[91] See the Applicant’s statutory declaration of 04 March 2023 at [1].
[92]According to all the evidence and reporting, including from DFAT and other governmental sources, that I have set out above in some comprehensive detail, it was always at the very least, difficult, if not extraordinarily hard, for a Bidoon in the applicant’s position to acquire Iraqi citizenship – even given the terms of the Saddam-era Makremiayah. If Iraqi state identity documents were obtained as a result of fraud and corruption, or even by local Iraqi provincial governments eager to keep the peace where large numbers of Bidoon lived, then these documents cannot be determinative of a Bidoon having Iraqi nationality. In view of the strong likelihood that a Bidoon would only obtain Iraqi documents, especially dated in or around 2006, through unlawful or informal means, then no decision-maker can conclude other than that 2006 Iraqi identity documents cannot possibly be proof of Iraqi citizenship in 2023.
The Shia Militias and the missing tribal sponsors
A further obvious doubt that should have been held by any diligent decision-maker in respect of the applicant concerned his consistent evidence since his first interviews[93] of why he escaped Iraq in 2009-2010: the applicant and his family were terrorised, when living in Shia-dominated Nasariyah, by the Shia militias of the Badr Brigade[94] and the Mahdi Army[95].
[93] See the applicant’s Refugee Status Assessment Record of 10 February 2011 at pages 2 to 3.
[94][95] Jaysh al-Mahdi (JAM) or the Mahdi Army are a Shia militia lead by Muqtada al-Sadr. A good summary is here:The Shia militias of southern Iraq are well-armed and well organised, often enjoying the backing of the Iranian regime and its Islamic Revolutionary Guards Corps.[96] The applicant’s evidence was that, in 2009-2010, he and his family were, first, denied access to their mosque, which Shia worshippers had taken over, and, second, they were subsequently threatened, like other Sunni Bidoons, so they would leave Nasariyah.[97] The applicant’s house was attacked by Badr operatives, including with gunfire, which caused the applicant’s young daughter to understandably panic, hit a stove, and burn herself.[98] In May 2010, the applicant was kidnapped by Shia militants of either the Badr Brigade or the Mahdi Army, and he says he was tortured.[99] It is important to note that, while the applicant lacked evidence beyond his own testimony to substantiate these claims, these claims were consistently made by him, and he did not deviate or exaggerate or “improve upon” his claims during the applicant’s hearings. Overall, I found the applicant, when I questioned him about his obviously painful experiences of the Shia militias, consistent in his explanations of what had happened to him and his family, and I concluded he was telling the truth. Moreover, it is no secret that the Shia militias were and are powerful in southern Iraq and, also, very influential in the post-Saddam Government of Iraq.[100] It is entirely within the Badr Brigade’s tactics, techniques, and procedures, to kidnap and torture (and do even worse) those it considers to be an adversary. I found the applicant’s evidence to be truthful, particularly in respect of his being a stateless and vulnerable Sunni Bidoon in the majority Shia south of Iraq.
[96] See here: See the applicant’s Refugee Status Assessment Record of 10 February 2011 at pages 2 to 3.
[98] See the applicant’s Refugee Status Assessment Record of 10 February 2011 at page 3.
[99] See the applicant’s Refugee Status Assessment Record of 10 February 2011 at page 3.
[100]I note all this as for the applicant to have ever successfully sought Iraqi citizenship pursuant to the Saddam-era Makremiayah – as the Minister’s Delegate alleges – then the applicant must have been sponsored for his citizenship application by an Iraqi tribe. Sponsorship of the applicant by an Iraqi tribe would include a certain degree of ‘adoption’ by an Iraqi tribe of the applicant, and the existence of reciprocal obligations between the applicant and the tribe of loyalty and protection. The European Union Agency for Asylum noted this recently in relation to Iraqi tribes and their tribal members[101]:
Tribalism ‘is particularly prominent among the Sunni community’, especially in the governorates of Al-Anbar, Salah Al-Din, Kirkuk and Ninewa. For example, the population of Al-Anbar governorate still looks ‘more toward their tribes for protection than the central government’ where tribal leaders play the role of mediators and advocates ‘toward other tribes, security forces and the government’. The lack of strong political parties in the Sunni Arab areas also enabled tribes to represent the people and to mediate in cases of conflict. In an interview with EUAA, Nasir Al-Samaraie also observed that in Al-Anbar for example, especially in the Ramadi and Fallujah districts, the role of tribes is thriving due to the presence of high profile politicians, and that tribes in these areas seek financial benefits from those politicians. In a 2020 research paper on tribal justice for families with perceived affiliation to ISIL, Melisande Genat observed that given the current situation of dysfunctionality of state institutions and the aftermath of the ISIL-conflict, ‘Sunni tribes [in Nineveh, Salah al-Din and Anbar] all express a strong sense of confusion and a lack of clarity regarding the relationship between the adjudication function of the state and the tribes.’
The role of tribes in the Shia-majority areas in central and southern Iraq is also influential, particularly in Basra. Renad Mansour observed that ‘[t]he tribes in the southern areas of Iraq are diverse in their origins and make-up, and varied in their stances towards state institutions and non-tribal actors’. A case study prepared for the United Nations University published in August 2022 found that in the city of Al-Basrah (as well as in the city of Talafar in Anbar), ‘[h]ighest rates of trust (in both locations) were held towards tribal authorities’. Moreover, according to an IOM report published in 2021, 62% of the respondents to a survey, who were residents of Al-Basrah city, expressed positive trust in tribal leaders. Al-Samaraie observed that in southern Iraq, the potential financial gains to be made from the presence of the oil industry has increased the role of tribes, especially in the governorates of Al-Basrah, Thi-Qar and Maysan. According to him, those companies have taken large areas of land, and tribes tend to coerce them for financial benefits, especially through requesting the employment of members of tribes.
….
The foundational unit in the tribal structure is the ‘greater extended family’, known as the Khams (or Khamsa). It comprises ‘all male offspring who share the same great-great grandfather’, or those males ‘related through the paternal line to the fifth generation.’ This tribal unit is the one obligated by tribal custom to avenge the death or injury of a family member by either killing a member of the perpetrator’s Khams or by obtaining a financial compensation (diyya). That is, ‘if a tribesman is murdered, his [male] relatives within the khamsah are required to avenge his death, and all members of the murderer’s khamsah are considered to share responsibility and thus are legitimate targets for reprisal.
One notes here that Iraqi tribes are highly organised, well structured, have an entrenched role in the provincial society, whether majority Sunni or majority Shia, and, especially, that the tribe is owed loyalty by the tribal member and, in turn, the tribe will protect or avenge the tribal member.
[101]Anyone in the applicant’s position who had been sponsored by an Iraqi tribe would owe that Iraqi tribe his loyalty, especially where matters of life and death, and violence were concerned. The applicant, if sponsored by the tribe, could, in turn, always depend on that tribe’s protection (or retribution) if he should be threatened or attacked by an outside force, especially a Shia militia. That this applicant suffered so often and so terribly at the hands of the Shia militias in Nasariyah – including suffering attacks on his family and his home – weighs heavily against him ever having had any of the Tribal affiliations required to support an Iraqi citizenship application. It defies common sense and what we know of Iraqi tribes that any Iraqi tribal chiefs and leaders would allow a member, even a sponsored or adopted member, of their tribe to be repeatedly victimised by a militia, including being taken hostage and tortured, with nothing done in response by the tribe. It again, should always have dawned on any diligent decision-maker, that a person sponsored by a tribe in Iraq to acquire Iraqi citizenship would also enjoy protection by that tribe from the many cruel harms that were repeatedly suffered by this applicant.
It is puzzling that none of the Minister’s Delegates thought, as a matter of common sense, of how unlikely it was that someone in the applicant’s position, if he had been sponsored by an Iraqi tribe, would be repeatedly targeted by Shia militias for violence. Clearly, the Badr and Mahdi army operatives in Nasariyah knew that the applicant had no tribal protection because he was always a stateless Bidoon. If the Bidoon’s statelessness and vulnerability was a matter knowable to, of all people, the Shia militias, then this should, at least, have been a matter that crossed the minds of successive ministerial delegates.
Conclusion
The Tribunal is therefore not remotely satisfied that there was any non-compliance by the applicant in the way described in the notice given to him under s 107 of the Migration Act to the applicant.
All of the evidence before the Tribunal supports my findings that the applicant:
a.was never an Iraqi citizen;
b.never held documents proving that he was an Iraqi citizen; and
c.was always honest and forthright about his position and condition as an always stateless Bidoon.
Accordingly, the notice served on the applicant was wholly deficient in any evidentiary support. These deficiencies should have been obvious to any diligent decision-maker. The whole case of the Minister’s Delegate was and is a discombobulated mess that did a most grave injustice to this applicant.
The sheer absurdity of this case from its very beginnings is an embarrassment to the rule of law in Australia, whereby a stateless Bidoon was repeatedly required to prove the tragic nullity of the statelessness of himself and his fellow Bidoons, when there was no reliable evidence that he, personally, was ever anything other than a stateless Bidoon. I have quoted before, and will here again, the Israeli philosopher, Avishai Margalit, who said this almost 30 years ago about the role of institutions, including governmental ones, and how their treatment of persons reflects the decency of the underlying society:[102]
“A decent society is one whose institutions do not humiliate people. I distinguish between a decent society and a civilised one. A civilised society is one whose members do not humiliate one another, while a decent society is one in which the institutions do not humiliate people.”
This has been an indecent case, from its very inception, run by the Department against a vulnerable applicant who belonged to a people already well-known for enduring chronically cruel, as well as indecent, treatment in the Middle East. To say, additionally, that the case put forward by the Minister’s Delegate against this applicant was, unpersuasive, unfounded, and underwhelming, is, altogether, still an understatement. The Department should review any like Bidoon cases for similar errors and deficiencies. If cases as confused, insubstantial, and poorly made – as this one before me has proved to be – have also been made against other Bidoons resident in Australia, then it is the Department’s duty to immediately review those cases for the sorts of errors it made here, particularly given the shoddy imprecision I have set out in [20] and [21] above, before the Department proceeds further with any enforcement actions.
[102] Avishai Margalit, The Decent Society (Harvard University Press, Cambridge, MA, USA, 1996), at 1.
FINDINGS
As the Tribunal is not satisfied that there was any non-compliance, at all, by the applicant in the way described in the notice given under s 107 of the Migration Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.
If it was within the Tribunal’s power to award costs[103] to this applicant, particularly as he is, clearly, not a man of means and he has been required to resist, for some years now, the cancellation of his protection visa, I would award this applicant the costs of this case – and I would do so on the indemnity basis. The successive ministerial delegates should never have contemplated let alone pursued the applicant in the way that they did, given the obvious flaws in the case against the applicant. The Department’s indecent conduct in this case is why merits review, done vigilantly by this Tribunal, is so essential as an instrument of good government in Australia.
[103] Cf the Migration Act, s 486.
I record, yet again, the Tribunal’s appreciation of the assistance of Mr Alkafaji, the applicant’s solicitor, in this case.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 26 October 2023 at 4:29pm
Graham Alfred Frederick Connolly
Senior Member
Administrative Appeals Tribunal
ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)giving particulars of the possible non‑compliance; and
(b)stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)setting out the effect of sections 108, 109, 111 and 112; and
(e)informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address
(1A)The period to be stated in the notice under subsection (1) must be:
(a)in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)otherwise—14 days
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)visas of a stated class; or
(b)visa holders in stated circumstances; or
(c)visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
See this: The Washington Institute, Profile: Badr Organization, 02 September 2021.
There is as yet no official history of Australia in the 2003-2011 Iraq War and occupation, but this 22 May 2006 report of the Australian parliamentary delegation sets out some of the history of the Al Muthanna Task Group which was deployed to an Iraqi province which is to the west of and adjoins Nasiriyah:
See here:
MA, ‘Statelessness in Kuwait: Kuwait’s Bidoon’, Foreign Policy Digest, June 2010
Encyclopaedia Britannica Online
International Crisis Group, Where is Iraq heading? Lessons from Basra, Middle East Report No.67, 25 June 2007, page 1
Lynch, ‘Futures Denied’ Refugees International, October 2012, page 7 < M. Sorel, ‘Statelessness in Kuwait: Kuwait’s Bidoon’, Foreign Policy Digest, 1 June 2010 < International, ‘Kuwait: Still Stalling on Statelessness’, 12 May 2010, < Global Security, Kuwait – Military Personal
Foreign and Commonwealth Office as cited by the UK Home Office, Country of Origin Information Report – Kuwait, 29 January 2010, at page 45.
Refugees International, ‘Kuwait: Still Stalling on Statelessness’, 13 May 2010.See Immigration and Refugee Board of Canada, Iraq: Availability of fraudulent identification documents, including passports, national identity cards, certificates of nationality and birth certificates; state efforts to combat fraud (2014-January 2016), dated 18 February 2016.
Good synopsis here in reasonably plain English:
See this: The Washington Institute, Profile: Badr Organization, 02 September 2021.
European Union Agency for Asylum, Iraq: Arab tribes and customary law, April 2023
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